ASBCA 63595

DOCUMENT FOR PUBLIC RELEASE. The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Michael M. Tsontos, S.A. Chania ) ASBCA No. 63595 Sucursala Bucuresti ) ) Under Contract No. W912GB-17-D-0015 ) APPEARANCE FOR THE APPELLANT: Paul D. Reinsdorf, Esq. Theodor-Heuss-Allee 112 Frankfurt, Germany APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney David B. Jerger, Esq. Engineer Trail Attorney Baltimore., MD Jason Shippy, Esq. Engineer Trial Attorney Brooklyn, NY Herbert J. Aldridge, Esq. Engineer Trial Attorney U.S. Army Engineer District, Europe OPINION BY ADMINISTRATIVE JUDGE TAYLOR ON APPELLANT’S MOTION FOR SUMMARY JUDGMENT In this appeal, Michael M. Tsontos SA Chania Sucursala Bucuresti (Tsontos Romania) moves for summary judgment contending the United States Army Corps of Engineers (USACE or the government) failed to satisfy the Contractor Performance Assessment Reports (CPARS) “fair and equal” requirement when it violated Federal Acquisition Regulation (FAR) 42.1502(a) by issuing CPARS to Michael M. Tsontos, S.A. (Tsontos Greece) instead of Tsontos Romania, the “entity, division or unit” that performed the task orders (app. mot. at 23-24). The government responds appellant’s motion should be denied since genuine issues of material fact exist as to whether the contracting officer’s determination that Tsontos Greece and Tsontos Romania were the same entity that performed the contract was reasonable (gov’t opp’n at 1). The government also contends that appellant has not shown USACE erred in issuing the CPARS to Tsontos Greece based upon the contracting officer’s conclusion  DOCUMENT FOR PUBLIC RELEASE. The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. that Tsontos Greece and not Tsontos Romania was the entity that performed the work (id.). As discussed below, we grant appellant’s summary judgment motion since the undisputed facts show Tsontos Romania was the “entity, division or unit” of Tsontos Greece that performed the contract work. Furthermore, we determine the government failed to follow FAR 42.1502(a) in issuing the CPARS to Tsontos Greece rather than Tsontos Romania - the “entity, division or unit” that performed the task orders. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION In support of its motion, appellant filed a statement of undisputed material facts (ASUMF). The government responded to appellant’s statement of undisputed material facts and provided additional material facts (GSUMF). In its reply brief, appellant responded to the government’s additional proposed material facts (app. reply at 4-15). The following facts are undisputed or uncontroverted. Contract Award and Modifications 1. On September 26, 2017, the USACE awarded the base Contract No. W912GB17D0015 (the contract), a multiple award task order contract (MATOC) to Tsontos Greece for construction services in Romania (R4, tab 3). The contract lists the address for Tsontos Greece as “1 Efedron Polemiston, Chania 73135” with a North Atlantic Treaty Organization Commercial and Government Entity Code (NCAGE Code) of “G1851” (id. at 11). 1 The contract indicated the contractor’s performance would be evaluated upon completion of each task order in accordance with FAR 42.1502 (id. at 168). 2. The government subsequently awarded four task orders to Tsontos Greece under the contract for various construction projects in Romania (the task orders) (R4, tabs 42-43, 60, 69, 89). Task Order No. W912GB17F0276 provided for the design and construction of a cargo parking apron at Mihail Kogalniceanu (MK) Air Base near Constanta, Romania (R4, tab 69). Task Order No.